Citation Nr: 1719896
Decision Date: 06/05/17 Archive Date: 06/21/17
DOCKET NO. 10-09 777 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana
THE ISSUE
Entitlement to service connection for the cause of the Veteran's death
ATTORNEY FOR THE BOARD
C.A. Skow, Counsel
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The Veteran served on active duty from November 1979 to March 1980. He died in August 2008. The appellant is his surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana
In December 2013, the Veteran testified before a Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In May 2014, the Board remanded the appeal.
The Board notified the appellant in a February 2017 letter that the VLJ who conducted the hearing is no longer employed by the Board and offered her another hearing. As no response was received within the applicable time period, the Board assumes that the appellant does not want another hearing.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The appellant seeks service connection for the cause of the Veteran's death. A death certificate shows that he died in August 2008 due to sepsis for 4 days and diffuse large cell lymphoma for 1 year. Other medical conditions listed included cardiomyopathy and chronic renal failure.
The appellant contends that the Veteran's heart condition, that was a contributory cause of his death, is the result of either in-service aggravation of a preexisting congenital disease or an injury to a congenital defect. She argued that the Veteran was initially diagnosed with Barlow's syndrome, a common abnormality of the mitral valve of the heart, in service and that he continued to have chronic heart problems, including the cardiomyopathy that contributed to his death, since service.
The Board remanded this appeal in May 2014 for additional development to include obtaining a VA medical opinion in this matter. A VA medical opinion was obtained in October 2016 and an addendum was obtained in November 2016.
Having carefully reviewed the record, the Board finds that the October 2016 VA medical opinion with the November 2016 addendum is inadequate. The medical opinion with the addendum does not substantially satisfy the May 2014 Board remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The opinion with the addendum, taken together, reflects that the Veteran had a congenital disease diagnosed as Barlow's syndrome (i.e. mitral valve prolapse). It was noted that "the condition," presumably referring to Barlow's syndrome, (1) did not have its onset in service because it is a congenital abnormality present at birth, (2) did not become aggravated during service -although no rationale given, and (3) did not contribute to the cause of the Veteran's death because it does not cause death-no further explanation was given.
The medical opinion is inadequate for the following reasons: First, it does not provide a complete rationale for the opinion that Barlow's syndrome was not aggravated during active duty service; second, it does not expressly address whether Barlow's syndrome materially or substantially contributed to death -that is, to aid or lend assistance to the production of death; and third, it does not address whether Barlow's syndrome was of such severity as to have a material influence in accelerating death. See 38 C.F.R. § 3.312(a), (c). Also, although the medical opinion acknowledged that the Veteran's death certificate showed cardiomyopathy, the medical opinion did not indicate whether Barlow's syndrome caused or contributed to cardiomyopathy-an essential component of the appellant's theory of entitlement.
In view of the above, the Board finds that the medical opinion must be returned for an addendum. As remand is necessary, the appellant should be afforded another opportunity to either submit, or to authorize VA to obtain, private terminal treatment records for the Veteran from Methodist Hospital of Indiana. The appellant is cautioned that VA's duty to assist in the development of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). She should cooperate and assist as requested in the development of the claim. Furthermore, the appellant should be asked to provide or identify the source of any outstanding serial echocardiograms performed on the Veteran in light of the 2016 VA medical opinion, which indicated that serial echocardiograms would help the physician to evaluate the full extent of damage to the heart, if any, and document the progress of Barlow's syndrome.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should request that the appellant either submit, or authorize VA to obtain, private terminal treatment records for the Veteran from Methodist Hospital of Indiana. All attempts to obtain such records should be documented in the claims file, to include any responses from the appellant in regard to this request.
2. The AOJ should request that the appellant to submit, or identify and authorize VA to obtain, any outstanding serial echocardiograms. All attempts to obtain any identified records should be documented in the claims file, to include any responses from the appellant in regard to the request.
3. The 2016 VA medical opinion with the addendum should be returned to the physician for another addendum. The previous medical opinion indicated that Barlow's syndrome was a congenital disease and, with this in mind, the following questions should be answered:
(a) Was the Veteran's Barlow's syndrome, first diagnosed in service, aggravated (permanently worsened) during service?
(b) Did Barlow's syndrome materially or substantially contributed to death -that is to aid or lend assistance to the production of death?
(c) Was Barlow's syndrome was of such severity as to have a material influence in accelerating the Veteran's death?
(d) Did Barlow's syndrome cause or contribute to the Veteran's cardiomyopathy, as theorized by the appellant? Only IF YES, then did cardiomyopathy cause or contribute (materially or substantially) to the Veteran's death?
The claims file must be reviewed and the review noted in the report.
A complete rationale for each question answered is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. If the physician who promulgated the 2016 VA medical opinion is not available, arrange to obtain the above requested opinions from a suitably qualified health care professional.
4. After ensuring any other necessary development has been completed, the AOJ should readjudicate the claim. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board.
By this remand, the Board intimates no opinion as to any final outcome warranted.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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G.A. WASIK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).